NO. 07-07-0453-CR, 07-07-0454-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
MAY 19, 2010 _________________________
LARRY SCROGGS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE _________________________
ALANA LYNN GARIEPY, APPELLANT
THE STATE OF TEXAS, APPELLEE ___________________________
FROM THE 69TH DISTRICT COURT OF MOORE COUNTY;
NO. 3989; 3990; HONORABLE RON ENNS, JUDGE __________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
OPINION
The motions for rehearing of appellants Larry Scroggs and Alana Gariepy are
denied. We withdraw our opinion and judgments of February 23, 2010, and substitute
the following. In these two cases, appellants were indicted for the offenses of aggravated
kidnapping1 and two counts of burglary of a habitation.2 They were tried together, and
convicted of the indicted offenses by a jury which assessed probated sentences and
fines as punishment. Appellants challenge their convictions and sentences through
seven identical issues.
We will reverse and render judgment vacating appellants’ convictions for burglary
of a habitation predicated on a felony (aggravated kidnapping); modify the judgments as
specified herein; remand in part for recalculation of total fees and monthly fees due from
appellants; and otherwise affirm.
Because this case presents a protracted factual narrative and appellants
challenge on appeal the legal and factual sufficiency of the evidence supporting their
convictions under each count of their indictments, we will set forth the background facts
below in conjunction with our review of the sufficiency of the evidence issue.
Discussion
Legal and Factual Sufficiency of the Evidence
By their second issue, appellants argue the evidence is legally and factually
insufficient to support their convictions for aggravated kidnapping and burglary. We
measure the legal and factual sufficiency of the evidence against the elements of the
1 Tex. Penal Code Ann. § 20.04(b) (Vernon 2003). 2 Tex. Penal Code Ann. § 30.02(a)(3) (Vernon 2003) (attempt or commission of assault and a felony (kidnapping)).
2 offense as defined by a hypothetically correct jury charge. See Wooley v. State, 273
S.W.3d 260, 268 (Tex.Crim.App. 2008) (holding that factual sufficiency, like legal
sufficiency, should be measured “by the elements of the offense as defined by a
hypothetically correct jury charge”); Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.
1997).
In conducting a legal sufficiency review, we view the evidence in the light most
favorable to the verdict to determine whether a rational fact finder could have found
each element of the offense beyond a reasonable doubt. Swearingen v. State, 101
S.W.3d 89, 95 (Tex.Crim.App. 2003); Conner v. State, 67 S.W.3d 192, 197
(Tex.Crim.App. 2001) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979)). If, based on all the evidence, a reasonably-minded jury must
necessarily entertain a reasonable doubt of the defendant's guilt, due process requires
that we reverse and order a judgment of acquittal. Swearingen, 101 S.W.3d at 95,
(citing Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App. 1992), cert. denied, 507
U.S. 975, 113 S. Ct. 1422, 122 L. Ed. 2d 791 (1993)).
A factual sufficiency review of the evidence is “barely distinguishable” from the
legal sufficiency review under Jackson v. Virginia. Marshall v. State, 210 S.W.3d 618,
625 (Tex.Crim.App. 2006). A factual sufficiency review considers whether the evidence
supporting guilt, though legally sufficient, is so weak that the jury's verdict seems clearly
wrong and manifestly unjust, or evidence contrary to the verdict is such that the jury's
verdict is against the great weight and preponderance of the evidence. Id.; Watson v.
State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006); Johnson v. State, 23 S.W.3d 1,
11 (Tex.Crim.App. 2000). In a factual sufficiency review, we again consider all the
3 evidence, but now in a neutral light. Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d
at 414. Although an appellate court’s authority to review factual sufficiency permits the
court to disagree with the fact finder’s determinations, even to a limited degree those
concerning the weight and credibility of the evidence, the appellate court must accord
them due deference. Marshall, 210 S.W.3d at 625; Johnson, 23 S.W.3d at 9. When
there is a conflict in the evidence, to find it factually insufficient we must first be able to
say, with some objective basis in the record, that the great weight and preponderance of
all the evidence contradicts the jury's verdict. Watson, 204 S.W.3d at 417.
A person commits the offense of aggravated kidnapping if the person
intentionally or knowingly abducts another person and uses or exhibits a deadly weapon
during the commission of the offense. Tex. Penal Code Ann. § 20.04(b) (Vernon 2003);
Hines v. State, 75 S.W.3d 444, 446 (Tex.Crim.App. 2002). “Abduct” includes restraining
a person with intent to prevent her liberation by using or threatening to use deadly force.
Tex. Penal Code Ann. § 20.01(2) (Vernon 2003). “Restrain” means to restrict a
person’s movements without consent, so as to interfere substantially with the person's
liberty, by moving the person from one place to another or by confining the person.
Tex. Penal Code Ann. § 20.01(1) (Vernon 2003). Restraint is without consent if it is
accomplished by force, intimidation, or deception. Tex. Penal Code Ann. § 20.01(1)(A)
(Vernon 2003). No specific time requirement exists for determining whether a restraint
has taken place. Hines v. State, 75 S.W.3d 444, 447-48 (Tex.Crim.App. 2002).
“Deadly force” is defined as “a force that is intended or known by the actor to cause, or
in the manner of its use or intended use is capable of causing, death or serious bodily
injury.” Holmes v. State, 830 S.W.2d 263, 265 (Tex.App.–Texarkana 1992, no pet.).
4 A person commits the offense of burglary if, without the effective consent of the
owner, the person:
(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault; or
(2) remains concealed, with intent to commit a felony, theft, or an assault, in a building or habitation; or
(3) enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.
See Tex. Penal Code Ann. § 30.02 (Vernon 2003).
Factual Background
Testimony showed that Monique Graves and Kevin Hamilton lived together in a
Dumas, Texas, apartment. They abused the pain reliever Oxycontin to the point of
addiction. Graves purchased the drug from appellant Gariepy. Following the death of
her mother, Graves looked to Gariepy as a friend and mentor. When Graves became
pregnant, Gariepy supported her effort to cease drug abuse. According to appellant
Scroggs’ brief, he and Gariepy were close friends.
On December 26, 2006, about mid-day, Graves was dressing in the bedroom of
her apartment. Her pregnancy was near term. Suddenly, Scroggs forced open the front
door, breaking the lock chain and door frame. He stood in the door while Gariepy
entered the bedroom. She was angry and accused Graves and Hamilton of breaking
into her home and stealing a bottle of Oxycontin.
Gariepy pushed Graves onto the bed, grabbed her hair, and began slapping her.
Graves momentarily saw Scroggs in her bedroom doorway. Gariepy pulled hair from
5 Graves’ head and struck her about the head, cutting her lip and leaving marks on her
ears and neck. Gariepy demanded that Graves dress and accompany her to Hamilton’s
workplace in Cactus, Texas, and then to a hospital for a blood test. The blood test was
to prove Graves’ denial she was taking Oxycontin. Gariepy took Graves’ keys and cell
phone. Graves voluntarily walked from the apartment into the common area of the
apartment complex, hoping a bystander would see the situation and call police. From
the parking lot, Graves noticed a neighbor doing yard work. She believed he heard her
yelling for Gariepy to stop, but did not specifically call to him for help.
Gariepy remained angry in the parking lot and at times struck Graves. According
to Graves, Gariepy screamed that Graves knew “that was her only livelihood.” Scroggs
stood at the driver’s door of his car and watched. Gariepy grabbed Graves by the hair
and throat and forced her into the backseat of Scroggs’ car. The vehicle was equipped
with front bucket seats. As Gariepy forced her into the car, Graves noticed Scroggs had
a handgun. Scroggs pointed the gun toward the backseat.
Jimmy Donoho lived in a house behind the apartment complex where Graves
lived. Donoho testified he was doing yard work on that day and saw two unidentified
women outside, at the apartment complex. One woman had her hands on the other
woman as the other screamed, “Please, please stop, stop, please, I didn’t do anything
wrong.”
On cross-examination, Donoho said he saw the same women three times at the
apartments over a period of about ten minutes. On the last observation, he also saw a
man at an apartment door yelling, “That’s the way you want it, that’s the way you’re
6 going to get it.” Donoho had concerns but chose not to call police as he wished not to
become involved in the situation.
With Graves in the backseat and Gariepy in the front passenger seat, Scroggs
drove toward Hamilton’s workplace in Cactus. Along the way, Gariepy called Hamilton
on a cell phone, accusing him of thievery and inquiring if he knew how much money he
owed her. Hamilton testified that as they spoke he could hear Graves in the
background saying, “No, no, no.” He opined she sounded frightened. Gariepy also told
Hamilton that Graves would “be around long enough to have that baby.”
Hamilton left work in a company pickup and pulled to the side of the road when
he saw Scroggs’ car approaching. As Scroggs’ car slowed to a stop by Hamilton’s
pickup, Graves placed her hand on the car’s inside door handle. Scroggs told her not to
“try anything funny” and Gariepy grabbed Graves and pulled her forward. Hamilton
testified he observed from his vehicle Scroggs pointing a gun at Graves. Scroggs
gestured with the gun as he spoke. According to Graves, Scroggs pointed the gun at
her when she placed her hand on the door handle as the vehicle stopped.
As they spoke beside the highway, Scroggs and Gariepy accused Hamilton of
theft. They also conveyed their intention of obtaining a blood test for Graves at the
hospital. Scroggs and Gariepy, with Graves remaining in the backseat, then drove back
to Graves’ apartment. Hamilton followed. At the apartment, Hamilton and Gariepy went
inside while Graves and Scroggs remained outside. According to Graves and Hamilton,
Scroggs held the gun concealed by a “blue sock hat.” Hamilton testified that Graves
was “terrified” and mouthed to him, “‘Help me, help me.’”
7 Gariepy then directed the parties to the hospital and allowed Graves to ride with
Hamilton while she and Scroggs followed. As they drove from the apartment complex,
Hamilton called 911 on his cell phone. According to Hamilton, he placed the phone on
his lap in fear Scroggs and Gariepy would see him calling.
In response to the call, Dumas police officer Tommy Gonzales arrived at the
hospital and was soon joined by officer Jason Wilkins. According to Gonzales, Hamilton
was crying and whispered Scroggs had a gun. Gonzales described Graves as shaking
“severely” and crying. He observed she had a “swollen and busted lip.” After ordering
Scroggs from his car at gunpoint, Gonzales located a gun on the driver’s seat. Wilkins
arrived and took Scroggs into custody. Gonzales went to Graves’ apartment and
observed a shoe print on the door by the knob and the frame cracked and damaged.
Gariepy testified at trial. She averred a close relationship developed between
Graves and her after the death of Graves’ mother. On December 25, Gariepy’s brother,
James West, briefly visited her and apparently left behind a pill bottle containing
Oxycontin tablets. Graves thereafter visited Gariepy before they left simultaneously.
Gariepy believed Graves saw the pill bottle during the visit. Several hours later, when
she returned from a family Christmas gathering, Gariepy saw signs of a break-in at her
home. The only item missing was West’s bottle of Oxycontin. Gariepy was not able to
contact Graves that day.
Gariepy testified that the next day, Scroggs drove her to Graves’ apartment in
Dumas from Gariepy’s home in Fritch, Texas. Graves would not answer the door. At
Gariepy’s command, Scroggs pushed the door open and then stepped back outside.
8 Gariepy said she and Graves argued inside the apartment. Gariepy pushed
Graves on the bed and “thumped” her nose, perhaps more than once. Graves
eventually confessed that Hamilton broke into Gariepy’s home and took the Oxycontin.
Graves agreed to a blood test. Gariepy required that Graves ride with Scroggs and her.
Gariepy forced Graves into Scroggs’ car by grabbing her hair. The three then set out
for Hamilton’s workplace. Gariepy denied striking Graves while they drove to
Hamilton’s workplace in Cactus but admitted speaking “severely” with her. As they
stopped to speak with Hamilton, Scroggs told Graves to remove her hand from the door
handle and Gariepy grabbed Graves and pulled her forward. Scroggs had a handgun in
the car but, according to Gariepy, did not point it at Graves. Gariepy demanded the pills
and Hamilton acknowledged they were at the apartment. Hamilton then followed
Scroggs back to the apartment where Hamilton retrieved the pills. Graves rode with
Hamilton to the hospital. Gariepy left the bottle of Oxycontin in Scroggs’ car which was
impounded by police. The bottle of pills was not confiscated as evidence.
Gariepy testified that she did not call Child Protective Services (CPS) after
suspecting Graves was using Oxycontin while pregnant because she wanted to
investigate and allow Graves the opportunity to prove her innocence through a blood
test.
Through cross-examination, counsel for appellants developed that in their
statements to police Graves and Hamilton did not mention stopping at the apartment
before going to the hospital. According to the statements, after a second roadside stop
Graves rode the rest of the way to the hospital with Hamilton.
9 Aggravated Kidnapping
We reject appellants’ challenge to the sufficiency of evidence supporting their
conviction for aggravated kidnapping. Appellants specifically challenge the sufficiency
of evidence proving their mens rea to commit aggravated kidnapping. A kidnapping
becomes a completed offense when a restraint is accomplished and evidence shows
the actor manifested the specific intent to prevent the victim’s liberation by secreting the
victim or using or threatening use of deadly force. Mason v. State, 905 S.W.2d 570,
575 (Tex.Crim.App. 1995). The use or threatened use of deadly force is part of the
mens rea of kidnapping and not the actus reus. Id.
Appellants also argue the evidence was insufficient to prove they restrained
Graves by moving her from one place to another. While it appears undisputed that
Graves agreed to have a blood test at the hospital, it is undisputed also that she did not
consent to accompany appellants to Hamilton’s workplace in Cactus or to ride in
Scroggs’ car. In the apartment, Gariepy physically prevented Graves from calling 911
by pulling the cell phone from her hand. She retained Graves’ cell phone, took her
keys, and forced her into the backseat of Scroggs’ car. Scroggs had a handgun in the
car and according to Graves pointed it at her. Gariepy physically prevented Graves
from exiting the vehicle by grabbing her.
Burglary of a Habitation
We also reject appellants’ argument the evidence was legally and factually
insufficient to support the jury’s verdict of burglary of a habitation under count two of the
indictment.
10 Count two alleged appellants entered Graves’ apartment without consent and
attempted to or did assault her.3 The basis of appellants’ complaint here is the
evidence was not sufficient to prove beyond a reasonable doubt that an assault of
Graves was intended before appellants entered the apartment. Proof of this fact,
however, was not required for appellants’ conviction under the indictment. Rather, the
State had but to show that after entering the apartment without Graves’ consent,
appellants attempted to or did assault Graves. See Tex. Penal Code Ann. § 30.02(a)(3)
(Vernon 2003).
Viewed in the light most favorable to the verdict, the combined force of the
evidence supporting appellants’ convictions for aggravated kidnapping and burglary
under counts one and two of the indictments would have allowed a rational juror to find
beyond a reasonable doubt the legal elements of the offenses alleged. Affording due
deference to the jury’s credibility determinations, and considering the evidence in a
neutral light, the jury was rationally justified in finding beyond a reasonable doubt that
appellants committed aggravated kidnapping and burglary of a habitation. Because the
evidence was legally and factually sufficient, we overrule appellants’ second issue.4
3 See Tex. Penal Code Ann. § 30.02(a)(3) (Vernon 2003). A person commits assault if the person inter alia “intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse.” See Tex. Penal Code Ann. § 22.01(a)(1) (Vernon Supp. 2009). 4 Because of our disposition of this appeal, discussion of the legal and factual sufficiency of the evidence supporting appellants’ convictions under count three of the indictment, burglary predicated on a felony (aggravated kidnapping), is unnecessary. See Tex. R. App. P. 47.1.
11 Immunity: Motion for Instructed Verdict and Jury Instruction
In their first issue, appellants argue the trial court erred by denying their motions
for instructed verdict and to dismiss grounded on the affirmative defense of immunity.5
Within this issue, they further argue the trial court erred by denying a requested jury
instruction on immunity. Although the issue is multifarious, we are able to follow the
argument and will address the complaints asserted. See Tex. R. App. P. 38.9.
Because appellants bore the burden of proof of their immunity defense by the
preponderance of the evidence standard, we follow the standard of review applied in
civil cases for review of denial of an instructed verdict. See Watson, 204 S.W.3d at
436-37 (Cochran, J., dissenting). A trial court’s denial of a motion for instructed verdict
may be reversed if the evidence conclusively proves a fact establishing a party’s right to
judgment as a matter of law, and there is no evidence to the contrary. See McCarley v.
Hopkins, 687 S.W.2d 510, 512 (Tex.App.–Houston [1st Dist.] 1985, no writ). On review
of a denial for instructed verdict, we consider all the evidence in the light most favorable
to the non-movant and disregard all contrary evidence. Harris County v. Demny, 886
S.W.2d 330, 333 (Tex.App.–Houston [1st Dist.] 1994, writ denied). All reasonable
inferences are resolved in favor of the non-movant. Id. If the record contains any
conflicting evidence of probative value on any theory of recovery, the question is one of
fact for resolution by the jury. Cliffs Drilling Co. v. Burrows, 930 S.W.2d 709, 712
(Tex.App.–Houston [1st Dist.] 1996, no writ).
5 Appellants filed a pre-trial motion to dismiss which was denied. They re-urged this motion at trial in the course of making an oral motion for instructed verdict. The basis of their argument is the evidence was conclusive that under Family Code § 261.106 they were immune from criminal prosecution for the conduct giving rise to the indicted offenses. Tex. Fam. Code Ann. § 261.106 (Vernon 2008). 12 Appellants argue that Graves was “endangering and abusing or neglecting her
unborn child” by consuming Oxycontin while pregnant. Rather than immediately report
this belief to CPS or to a law enforcement agency, they decided to compel a blood test
of Graves and then decide whether to report abuse or neglect.
According to appellants, Texas Family Code § 261.1066 grants them immunity
from the conduct giving rise to the indicted offenses because they were reporting and
assisting in the investigation of a report of alleged child abuse or neglect.7 Appellants’
contentions are without merit.
Appellants’ assertions of immunity are defeated by the plain language of the
statutes to which they refer.8 Reports of suspected child abuse or neglect under
subchapter B of chapter 261 of the Family Code are made to law enforcement or other
designated state agencies. See Tex. Fam. Code Ann. § 261.101(a) (Vernon 2008)
(requiring immediate report “as provided by this subchapter”); § 261.103 (with
exceptions not relevant here, “a report shall be made to” listed agencies).
6 In relevant part this section provides:
A person acting in good faith who reports or assists in the investigation of a report of alleged child abuse or neglect or who testifies or otherwise participates in a judicial proceeding arising from a report, petition, or investigation of alleged child abuse or neglect is immune from civil or criminal liability that might otherwise be incurred or imposed.
Tex. Fam. Code Ann. § 261.106(a) (Vernon 2008). 7 The State argues the “child abuse or neglect” referred to in Family Code Chapter 261 does not refer to unborn children so § 261.106 has no application in this case. We do not reach the State’s argument. 8 Courts interpret a statute in accordance with the plain meaning of its words unless they are ambiguous or the plain meaning leads to absurd results. Mosley v. State, 983 S.W.2d 249, 256 (Tex.Crim.App. 1998). 13 Investigations of such reports, under subchapter D of chapter 261, are conducted by
designated state agencies. See Tex. Fam. Code Ann. § 261.301(a) (Vernon 2008)
(requiring investigation of reports by agency with assistance from law enforcement).
Scroggs asserts a “report” was made when another person, apparently Gariepy,
related facts to him creating in his mind a suspicion of abuse or neglect. Thus
appellants’ subsequent conduct toward Graves was an “investigation” of the report of
Gariepy. But, as noted, a report under chapter 261 is made to an agency designated by
§ 261.103, not to a private individual. The investigation of a report under chapter 261
follows the report, it does not precede the report. And reports are investigated under
chapter 261 by agencies, not private individuals.
Testimony showed appellants related their concerns for the health of Graves’
unborn child to the officers who arrested them at the hospital. But their after-the-fact
“reporting” does not immunize them from liability for their criminal acts. Section 261.106
plainly and unambiguously grants immunity to those participating in the investigation of
a report but offers no protection for those choosing to forego its requirements.
Assuming, without deciding, that the immunity provided by § 261.106 would extend to
the felonious actions shown by the evidence here,9 the evidence did not conclusively
establish appellants’ entitlement to immunity. The trial court did not err by denying their
motion for instructed verdict.
9 See State v. Harrod, 81 S.W.3d 904 (Tex.App.—Dallas 2002, pet. refused) (finding limits to statute’s grant of immunity). 14 Failure to Instruct on Immunity Defense
Appellants next argue that if immunity was not established as a matter of law the
trial court erred by refusing a requested jury instruction on immunity. Solely for this
discussion, but without so deciding, we assume the propriety of submitting a § 261.106
immunity instruction when raised by the evidence in a criminal case.
We review the trial court’s denial of a requested jury instruction for abuse of
discretion. See Threadgill v. State, 146 S.W.3d 654, 666 (Tex.Crim.App. 2004). Our
consideration is whether the evidence adduced by either party, when viewed in the light
most favorable to the appellant, is sufficient to raise the defensive issue. Granger v.
State, 3 S.W.3d 36, 38 (Tex.Crim.App. 1999). “An accused has the right to an
instruction on any defensive issue raised by the evidence, whether such evidence is
strong or weak, unimpeached or contradicted, and regardless of what the trial court may
or may not think about the credibility of this evidence.” Miller v. State, 815 S.W.2d 582,
585 (Tex.Crim.App. 1991) (citing Hayes v. State, 728 S.W.2d 804, 807 (Tex.Crim.App.
1987)). But an instruction is not required when an affirmative defense is without
evidentiary support. See Dyson v. State, 672 S.W.2d 460, 463 (Tex.Crim.App. 1984)
(self-defense). As discussed, the conduct appellants seek to immunize was not a report
or the investigation of a report as contemplated by § 261.106. There lies no dispute of
fact on the matter. It was not an abuse of discretion for the trial court to refuse
submission of a jury instruction on immunity.
Because appellants presented no evidence of conduct bringing them within the
immunity granted by § 261.106, we overrule their first issue.
15 Failure to Instruct on Defenses
In their third issue, appellants contend the trial court erred by failing to submit a
requested instruction on their defenses of defense of third person and necessity.
Defense of a third person requires inter alia the actor reasonably believes his
intervention is “immediately necessary” to protect a third person. Tex. Penal Code Ann.
§ 9.33(2) (Vernon 2003). Necessity requires inter alia proof that the actor reasonably
believes the conduct in question is “immediately necessary” to avoid “imminent harm.”
Tex. Penal Code Ann. § 9.22(1) (Vernon 2003).
A “reasonable belief” is one held by an ordinary and prudent person in the same
circumstance as the actor. Tex. Penal Code Ann. § 1.07(42) (Vernon Supp. 2009).
Whether a defendant was prompted to act by a reasonable belief is ordinarily an issue
for the trier of fact. Brazelton v. State, 947 S.W.2d 644, 648 (Tex.App.–Fort Worth
1997, no pet.). However, this belief may be deemed unreasonable as a matter of law if
undisputed facts demonstrate a complete absence of immediate necessity or immediate
harm. Arnwine v. State, 20 S.W.3d 155, 159 (Tex.App.–Texarkana 2000, no pet.);
Wilson v. State, 777 S.W.2d 823, 825 (Tex.App.–Austin 1989), aff’d 853 S.W.2d 547
(Tex.Crim.App. 1993). Whether the evidence raises a defense is always a question of
law. Shaw v. State, 181 S.W.3d 450, 452 (Tex.App.–Waco 2005), aff’d 243 S.W.3d 647
(Tex.Crim.App. 2007).
When Gariepy discovered the burglary of her house she became “very upset”
and tried unsuccessfully to contact Graves. Appellants then had overnight to deliberate
the situation before they embarked on their felonious conduct. Even if one accepts their
16 contention they were motivated at least in part by concern over the possible effects of
Oxycontin on Graves’ unborn child, we find no reasonable person could believe the
assault and kidnapping of Graves and burglary of her apartment were immediately
necessary to prevent imminent harm to the child. See Jackson v. State, 50 S.W.3d 579,
595 (Tex.App.–Fort Worth 2001, pet. refused) (testimony raised issue of necessity only
for defendant to continue driving, not to drive over speed limit, disregard traffic control
devices and veer into oncoming lanes of traffic); cf. Smith v. State, 874 S.W.2d 269, 273
(Tex.App.–Houston [14th Dist.] 1994, pet. refused) (in overruling evidentiary sufficiency
challenge of negative finding of necessity defense in interference with child custody
case, court noted appellant could have, but did not, contact CPS regarding safety of
children). Appellants’ third issue is overruled.
Admissibility of Extraneous Offense Evidence: Rules 404(b) and 403
The State offered video recordings made at the hospital at the time of appellants’
arrests by the cameras in the patrol cars of Gonzales and Wilkerson. The recordings
contain a statement by Hamilton that he and Graves bought Oxycontin from Gariepy
before Graves learned of her pregnancy. According to appellants, this evidence was
not admissible under Rule of Evidence 404(b) and even if admissible its probative value
was substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid.
404(b) & 403. The State counters that the evidence was admissible to rebut appellants’
claim that their conduct was motivated by the desire to protect Graves’ unborn child
from Oxycontin and show their true motive was determining if Graves and Hamilton
stole the Oxycontin.
17 Rule 404(b) provides that evidence of other crimes, wrongs or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith, but such evidence may be admissible to show “motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.” Tex. R. Evid.
404(b). Merely introducing evidence for a purpose other than character conformity, or
any of the other enumerated purposes in Rule 404(b), does not, by itself, make that
evidence admissible. Rankin v. State, 974 S.W.2d 707, 709 (Tex.Crim.App. 1996).
Whether objected-to evidence of “other crimes, wrongs, or acts” has relevance apart
from character conformity, as required by Rule 404(b), is a question for the trial court.
Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990) (op. on reh’g). An
appellate court owes no less deference to the trial judge in making this judgment than it
affords him in making any other relevancy call; that is, such a decision is reviewed for
abuse of discretion. Id. Therefore, as long as the trial court's ruling was within the zone
of reasonable disagreement, we will not intercede. Id. Extraneous offense evidence
may be admissible under Rule 404(b) to rebut a defensive theory raised by the State’s
witnesses during opening statement or cross-examination. Ransom v. State, 920
S.W.2d 288, 301 (Tex.Crim.App. 1996) (op. on reh’g) (cross-examination of State’s
witness); Powell v. State, 63 S.W.3d 435, 439 (Tex.Crim.App. 2001) (opening
statement). Such evidence is relevant apart from proof of character conformity. See
Montgomery, 810 S.W.2d at 387.
At trial, appellants urged the affirmative defense of immunity and the defenses of
defense of third person and necessity. During opening statement counsel for appellants
told the jury that the evidence would show the police failed to report the suspected
18 abuse or neglect of Graves’ unborn child and that appellants alone took steps to
investigate and report the suspected abuse or neglect. Officer Gonzales was the
State’s first witness and on cross-examination admitted that Gariepy wanted Graves’
unborn child checked for Oxycontin, that he did not investigate or report the drug use
claim to CPS, and that he believed it was child abuse or neglect for a pregnant woman
to take Oxycontin. Appellants’ counsel raised their defenses through opening statement
and cross-examination of Gonzales. The trial court did not abuse its discretion by
admitting Hamilton’s statement on the video recording as it was relevant to rebut
appellants’ defenses.
Relevant evidence may, nevertheless, be excluded under Rule 403 if its
probative value is “substantially outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the jury, or by considerations of undue delay, or needless
presentation of cumulative evidence.” Tex. R. Evid. 403. When conducting the
balancing test of Rule 403, the trial court determines whether the probative value of the
evidence is substantially outweighed by one of the countervailing considerations listed
in the rule. Id. In its evaluation of the evidence, the trial court balances (1) the inherent
probative force of the proffered item of evidence along with (2) the proponent’s need for
that evidence against (3) any tendency of the evidence to suggest a decision on an
improper basis, (4) any tendency of the evidence to confuse or distract the jury from the
main issues, (5) any tendency of the evidence to be given undue weight by a jury that
has not been equipped to evaluate the probative force of the evidence, and (6) the
likelihood that presentation of the evidence will consume an inordinate amount of time
19 or repeat evidence already admitted. Casey v. State, 215 S.W.3d 870, 880
Appellants complain Hamilton’s statement contained on the video recording
should have been excluded under Rule 403 because it was “harmful to [their] image
before the jury.” At its essence, appellants’ case was their claimed concern for Graves’
unborn child. The State’s theory was appellants burgled Graves’ apartment and
kidnapped her because she and Hamilton stole appellants’ drugs. From opening
statement through argument, these factual interpretations were before the jury. We fail
to see how Hamilton’s brief utterance had a tendency to suggest a decision on an
improper basis, cause jury confusion or distraction, or receive undue weight by the jury.
See Gigliobianco v. State, 210 S.W.3d 637, 642 (Tex.Crim.App. 2006). The trial court
could have, therefore, reasonably concluded that the probative value of Hamilton’s
statement on the video recording was not substantially outweighed by the danger of
unfair prejudice. We find the trial court did not abuse its discretion by admitting the
evidence over appellants’ Rule 403 objection. We overrule appellants’ fourth issue.
Failure to Instruct on Lesser Included Offense
By their fifth issue, appellants contend the trial court erred by failing to instruct
the jury on the lesser-included offense of criminal trespass of a habitation.
An offense is a lesser included offense if:
(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;
(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;
20 (3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or
(4) it consists of an attempt to commit the offense charged or an otherwise included offense.
Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 2006).
To determine if a defendant is entitled to a lesser included offense instruction, a
two-pronged test applies: (1) the lesser-included offense must be included within the
proof necessary to establish the offense charged, and (2) the record must contain some
evidence that if the defendant is guilty, he is guilty only of the lesser-included offense.
See Rousseau v. State, 855 S.W.2d 666, 672 (Tex.Crim.App. 1993). The first prong of
the Rousseau test is a question of law, wholly independent of the evidence adduced at
trial. Hall v. State, 225 S.W.3d 524, 535 (Tex.Crim.App. 2007). In analyzing the second
prong, we review all the evidence admitted at trial. Enriquez v. State, 21 S.W.3d 277,
278 (Tex.Crim.App. 2000). If more than a scintilla of evidence from any source raises
the issue that the defendant is guilty only of the lesser-included offense, the instruction
is proper on request. Forest v. State, 989 S.W.2d 365, 367 (Tex.Crim.App. 1999).
“Credibility of the evidence and whether it conflicts with other evidence is not to be
considered when determining whether the jury should have been charged with a lesser-
included offense.” Paz v. State, 44 S.W.3d 98, 100 (Tex.Crim.App. 2001).
Here, appellants were charged with burglary pursuant to Texas Penal Code §
30.02(a)(3) which specifies a person commits an offense if, without the effective
consent of the owner, the person “enters a building or habitation and commits or
attempts to commit a felony, theft, or an assault.” Tex. Penal Code Ann. § 30.02(a)(3)
21 (Vernon 2003). A person commits criminal trespass if he enters or remains on or in
property of another without effective consent and had notice that the entry was
forbidden or received notice to depart but failed to do so. See Tex. Penal Code Ann. §
30.05(a) (Vernon Supp. 2009).
The offense of criminal trespass can be a lesser included offense of burglary.
Phillips v. State, 178 S.W.3d 78, 82 (Tex.App.--Houston [1st Dist.] 2005 pet. refused).
For our disposition of appellant’s argument, we assume the first prong of the Rousseau
analysis is satisfied. But under the second prong the evidence must raise an issue that
the defendant, if guilty, is guilty only of the lesser offense of criminal trespass of a
habitation. See Pickens v. State, 165 S.W.3d 675, 679 (Tex.Crim.App. 2005); Aguilar,
682 S.W.2d at 558.
Graves testified she was dressing in her apartment when the door broke open.
Scroggs stood in the doorway as Gariepy walked across the living room. She pushed
Graves onto the bed, pulled her hair, and slapped her. According to Gariepy, she went
to the door of Graves’ apartment and repeatedly knocked but Graves did not answer.
Gariepy then instructed Scroggs to force open the door. According to his statement,
Scroggs did so with sufficient force to break the chain lock and the two entered.
Gariepy argued with Graves and pushed her onto the bed. Gariepy repeatedly struck
Graves on the face. On this record, no rational juror could find that if appellants were
guilty, they were guilty only of criminal trespass.
The trial court did not err by denying appellants’ request for an instruction on
criminal trespass of a habitation. We overrule appellants’ fifth issue.
22 Double Jeopardy Violation
We find record indication of unassigned error which we address on our own
motion. From the face of the record it appears appellants’ convictions for burglary of a
habitation violate the Double Jeopardy Clause of the Fifth Amendment of the United
States Constitution.10 “Appellate courts have the jurisdiction and authority to review
unassigned error. In the case of a double-jeopardy violation, the issue may be
addressed as an unassigned error when the violation is apparent from the face of the
record.” Bigon v. State, 252 S.W.3d 360, 369 (Tex.Crim.App. 2008) (citations
omitted).11
The indictments allege two counts of burglary of a habitation by appellants. Tex.
Penal Code Ann. § 30.02(a)(3) (Vernon 2003). According to count two, appellants
“intentionally or knowingly entered[ed] a habitation, without the effective consent of
Monique Graves, the owner thereof, and attempted to commit or committed an assault
against Monique Graves.” Count three alleged appellants “intentionally or knowingly
enter[ed] a habitation, without the effective consent of Monique Graves, the owner
thereof, and attempted to commit or committed the felony offense of aggravated
kidnapping or kidnapping.” It is undisputed that the charged burglaries sprang from a
single unlawful entry by appellants of Graves’ apartment.
10 No person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const., Amdt. 5. 11 In Bigon, as here, there was no double-jeopardy objection at trial and on the issue error was not assigned in the court of appeals. Bigon, 252, S.W.3d at 369. Cf. Gonzalez v. State, 8 S.W.3d 640, 643 (Tex.Crim.App. 2000) (double jeopardy claim may be raised for first time on appeal if undisputed facts show double jeopardy violation clearly apparent on face of record and enforcement of usual rules of procedural default would serve no legitimate state interest). 23 The Double Jeopardy Clause of the Fifth Amendment consists of three separate
protections: (1) it protects against a second prosecution for the same offense after
acquittal; (2) it protects against a second prosecution for the same offense after
conviction; and (3) it protects against multiple punishments. North Carolina v. Pearce,
395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.E.2d 656 (1969). Here we are concerned with
the third protection, that from multiple punishments.
“A defendant suffers multiple punishments in violation of the Double Jeopardy
Clause when he is convicted of more offenses than the legislature intended.” Ervin v.
State, 991 S.W.2d 804, 807 (Tex.Crim.App. 1999) (citing Ball v. United States, 470 U.S.
856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985)). “The legislature . . . determines whether
offenses are the same for double-jeopardy purposes by defining the ‘allowable unit of
prosecution.’” Ex parte Cavazos, 203 S.W.3d at 336 (quoting Sanabria v. United
States, 437 U.S. 54, 69, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978)). “The legislature also
decides whether a particular course of conduct involves one or more distinct offenses
under a given statute.” Ex parte Cavazos, 203 S.W.3d at 336. Thus it is the allowable
unit of prosecution that determines the scope of double jeopardy’s protection from
multiple punishments under the burglary statute. Id.
The gravamen of a burglary is an unauthorized entry with the requisite mental
state. Ex parte Cavazos, 203 S.W.3d at 337.12 The harm of burglary results from the
12 Appellants were indicted under Penal Code § 30.02(a)(3) which dispenses with the intent requirement of § (a)(1) and allows the State to prove after unlawful entry the defendant actually committed or attempted to commit a felony, theft, or assault. Tex. Penal Code Ann. § 30.02(a)(3) (Vernon 2003). See DeVaughn v. State, 749 S.W.3d 62, 65 (Tex.Crim.App. 1988) (gravamen of burglary is unlawful entry 24 unauthorized entry. Id. The offense is complete from entry. Id. Because burglary is a
crime against property and not a person, the allowable unit of prosecution for a burglary
is the unlawful entry. Id. On the face of this record, we find appellants were punished
twice for a single unlawful entry.
On finding a double-jeopardy violation, we retain the conviction with the “most
serious punishment,” and vacate any remaining convictions that are the “same” for
double jeopardy purposes. Landers v. State, 957 S.W.2d 558, 560 (Tex.Crim.App.
1997) overruled on other grounds, Ex parte Cavazos, 203 S.W.3d at 338. See Bigon,
252 S.W.3d at 372-73 (discussing Landers). The most serious offense is the offense for
which the greatest sentence was assessed. Ex parte Cavazos, 203 S.W.3d at 338
(overruling Landers to the extent it allowed consideration of other factors such as the
degree of the felony, range of punishment, and rules governing parole eligibility and
awarding good-conduct time). But here, appellants received identical sentences for
their two burglary convictions. We, therefore, break the apparent tie, by affirming the
offense first named in the verdict form; burglary predicated on assault. See Ex parte
Cavazos, 203 S.W.3d at 339 n.8 (court noted some of its cases may have suggested
this as a tie breaker but did not address the question). We vacate the judgments
convicting appellants of burglary of a habitation predicated on commission of
aggravated kidnapping.
accompanied by requisite mental state, § 30.02(a)(1) & (2), or requisite acts or omissions under § 30.02(a)(3)). 25 Sentencing Error
In their sixth issue, appellants claim various errors in the judgments of the trial
court. Appellants’ complaint of sentencing error for their convictions under count three
is rendered moot by our finding of a double jeopardy violation.
Appellants assert the trial court abused its discretion by imposing cumulative
sentencing, not adjusting the classification of aggravated kidnapping downward to a
second degree felony on the jury’s finding that Graves was voluntarily released at a safe
place, and not probating the fines for counts two and three as assessed in the verdicts
of the jury.
For each appellant, the first page of each judgment states, “This sentence shall
run consecutive to the case below.” We interpret this means on completion of the
sentence imposed for count one, appellants begin service of the sentence imposed
under count two.
It is not disputed that the offenses for which appellants were indicted and
convicted arose from the same criminal episode. See Tex. Penal Code Ann. § 3.01
(Vernon 2003). Subject to exceptions not applicable here, Penal Code § 3.03(a)
requires concurrent sentencing when an accused is found guilty of more than one
offense arising from the same criminal episode and prosecuted in a single criminal
action. Tex. Penal Code Ann. § 3.03(a) (Vernon Supp. 2009). The trial court’s
imposition of consecutive sentences runs afoul of the statutory requirement, and
constitutes an abuse of its discretion.
26 The judgments under count one, for aggravated kidnapping, classify the offense
a first degree felony. While this classification is generally correct, the Penal Code,
however, provides an exception. Tex. Penal Code Ann. § 20.04(c) (Vernon 2003).
Section 20.04(d) classifies aggravated kidnapping a second degree felony if the
defendant proves he voluntarily released the victim in a safe place. Tex. Penal Code
Ann. § 20.04(d) (Vernon 2003). The jury found appellants voluntarily released Graves
in a safe place. Accordingly, the judgments as to count one should have classified the
offense a second degree felony.
In its verdicts on punishment, the jury assessed fines of $5,000 for counts two
and three but recommended probation of each. The judgments, however, order
payment of a fine of $5,000 on counts two and three. We will reform the judgments of
count two to conform to the verdicts of the jury. Because the court included the fines in
its calculation of payments ordered by the judgments on count two and because we
vacate the judgments under count three, we remand in part with instructions for the trial
court to recalculate the total amount owed and monthly installment due of each
appellant.
Equal Protection Claim
In their seventh issue, appellants argue they were denied equal protection of the
law under the Constitutions of the United States and Texas. Their complaint is the trial
court denied their defenses of immunity, defense of third person, and necessity because
Graves’ child was not, at the time of the events giving rise to the indictment, yet born
27 alive. They imply one protecting a child born alive from ingestion of Oxycontin would be
entitled to immunity and justification defenses.
We have discussed why the trial court did not err by denying appellants’ motions
for directed verdict and refusing jury submission of their proposed instructions on
immunity and justification defenses. Because the trial court did not abuse its discretion
in denying appellants’ motions and requests on non-constitutional grounds, it is not
necessary to review their constitutional argument. Cf. Turner v. State, 754 S.W.2d 668,
675 (Tex.Crim.App. 1988) (courts do not address the constitutionality of a statute unless
consideration is essential to decision). A decision of issue seven is unnecessary to our
disposition of the appeal. Tex. R. App. P. 47.1.
Conclusion
We render judgment vacating the judgments of the trial court on count three of
the indictments, burglary of a habitation predicated on aggravated kidnapping.
The remaining judgments of the trial court are modified to provide the sentences
assessed against appellants under each judgment shall run concurrently; the
classification of offense under count one is a second degree felony; and the fines of
$5,000 for count two are probated.
Both cases on appeal are remanded in part with instructions to the trial court to
recalculate the amounts owed and monthly installment payments due of each appellant
in light of our vacation of the judgments under count three and the probation of fines
28 assessed for count two. Otherwise, and as modified, we affirm the judgments of the
trial court.
James T. Campbell Justice
Publish.